BILL ANALYSIS Ó
AB 36
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Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Brian Maienschein, Chair
AB 36
(Campos) - As Introduced December 1, 2014
SUBJECT: Local government: federal surplus property.
SUMMARY: Prohibits local agencies from receiving surplus
military equipment from the federal government, unless the
acquisition is approved at a meeting held pursuant to the Ralph
M. Brown Act. Specifically, this bill:
1)Expands California's Federal Surplus Property Acquisition Law
of 1945 (Federal Surplus Property Law) by prohibiting a local
agency from receiving surplus military equipment pursuant to
Section 2576a of Title 10 the United States Code (1033
Program), unless the legislative body of the local agency
approves the acquisition at a meeting held pursuant to the
Ralph M. Brown Act (Brown Act).
2)Expands the definition of "local agency" in the Federal
Surplus Property Law to include county, city, whether general
law or chartered, city and county, town, school district,
municipal corporation, district, political subdivision, or any
board, commission, or agency thereof, or other local public
agency.
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3)Adds a definition of "legislative body" to the Federal Surplus
Property Law and defines it to have the same meaning as the
term is defined in the Brown Act.
4)Finds and declares that this bill constitutes a matter of
statewide concern, that it shall apply to charter cities and
charter counties, and that its provisions shall supersede any
inconsistent provisions in the charter of any city, county, or
city and county.
5)Provides that, if the Commission on State Mandates determines
that this bill contains costs mandated by the state,
reimbursement to local agencies and school districts for those
costs shall be made pursuant to current law governing state
mandated local costs.
EXISTING LAW:
1)Requires, pursuant to the Brown Act, that all meetings of a
legislative body, as defined, of a local agency be open and
public and all persons permitted to attend, unless a closed
session is authorized.
2)Defines "legislative body" to mean:
a) The governing body of a local agency or any other local
body created by state or federal statute;
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b) A commission, committee, board, or other body of a local
agency, whether permanent or temporary, decision-making or
advisory, created by charter, ordinance, resolution, or
formal action of a legislative body. However, advisory
committees, composed solely of the members of the
legislative body that are less than a quorum of the
legislative body are not legislative bodies, except that
standing committees of a legislative body, irrespective of
their composition, which have a continuing subject matter
jurisdiction, or a meeting schedule fixed by charter,
ordinance, resolution, or formal action of a legislative
body are legislative bodies for purposes of the Brown Act;
c) A board, commission, committee, or other multimember
body that governs a private corporation, limited liability
company, or other entity that either:
i) Is created by the elected legislative body in order
to exercise authority that may lawfully be delegated by
the elected governing body to a private corporation,
limited liability company, or other entity; or,
ii) Receives funds from a local agency and the
membership of whose governing body includes a member of
the legislative body of the local agency appointed to
that governing body as a full voting member by the
legislative body of the local agency.
3)Authorizes the Department of Defense (DOD), pursuant to
Section 2576a of Title 10 the United States Code, to transfer
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surplus personal property, including arms and ammunition, to
federal or state agencies for use in law enforcement
activities, subject to specified conditions, at no cost to the
acquiring agency. This program is commonly referred to as the
1033 Program.
4)Allows, pursuant to California's Federal Surplus Property Law,
a local agency, as defined, to acquire surplus federal
property without regard to any law that requires posting of
notices or advertising for bids, inviting or receiving bids,
delivery of purchases before payment, or that prevents the
local agency from bidding on federal surplus property.
5)Defines "local agency" as used in California's Federal Surplus
Property Law to mean county, city, municipal corporation, or
public district.
FISCAL EFFECT: This bill is keyed fiscal and contains a
state-mandated local program.
COMMENTS:
1)Bill Summary. This bill updates California's Federal Surplus
Property Law, which was enacted in 1945, by prohibiting local
agencies from receiving surplus military equipment from the
1033 Program, unless the acquisition is approved at a meeting
held pursuant to the Brown Act.
This bill updates the Federal Surplus Property Law's
definition of "local agency" to include a county, city,
whether general law or chartered, city and county, town,
school district, municipal corporation, district, political
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subdivision, or any board, commission, or agency thereof, or
other local public agency. All of these entities would be
subject to the law with passage of this bill.
This bill also declares that it constitutes a matter of
statewide concern, that it shall apply to charter cities and
charter counties, and that its provisions shall supersede any
inconsistent provisions in the charter of any city, county, or
city and county. This bill is sponsored by the Author.
2)Author's Statement. According to the author, "Due to recent
events of police brutality, distrust between law enforcement
and many of our communities remains at an all-time high.
Further exacerbating the issue is the recent militarization of
law enforcement agencies and a movement away from community
policing across the nation.
"Amid a national debate over the militarization of police, the
San Jose Police Department acquired a 15-ton armored vehicle
earlier this year from the military surplus program. After
receiving community input that the armored vehicle was
damaging the trust that a decade
of community policing had created, the San Jose Police
Department decided to return the vehicle. In a separate case,
in Ferguson, Missouri, the mine-resistant, ambush-protected
troop transport, or Mine-Resistant Ambush Protected Vehicle
(MRAP), became a focus for debate after this military surplus
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vehicle and other military equipment were used by local law
enforcement to respond to civil unrest over the police killing
of unarmed teenager Michael Brown.
"These are only a few cases where the public felt threatened
by military equipment in their communities. In both cases,
the communities involved did not have the opportunity to weigh
in before the military equipment was acquired. These
situations hurt our most underserved communities by
exacerbating their relationship with the police and
government.
"Unilateral decisions by law enforcement agencies to acquire
military equipment provide little or no opportunity for
community input. Most law enforcement agencies are not
required to engage in a public process that involves public
debate about equipment purchases. This results in an
inherently skewed decision-making process about what someone's
community will look like. AB 36 helps address this issue by
prohibiting a public safety agency from receiving and buying
surplus military equipment unless the legislative body of the
local agency votes to approve the purchase at a public
meeting."
3)Background. While the militarization of local police
departments has been in news headlines for many months,
starting with the unrest in Ferguson, Missouri, it is not new.
It has been researched and written about for at least the
past two decades, having its roots in the law enforcement
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response to the social unrest of the 1960s, and the
development of Special Weapons and Tactics (SWAT) units.
There has been a dramatic expansion in the use of SWAT teams
since then, with a significant increase in their use for drug
raids, as noted in an article released by the U.S. Department
of Justice in December 2013 entitled "Will the Growing
Militarization of Our Police Doom Community Policing?" The
article also cites the use of battle dress uniforms and stress
training as contributors to the increased militarization of
local police practices.
The ACLU released a comprehensive report in June entitled,
"War Comes Home: The Excessive Militarization of American
Policing," which recommends that state legislatures and
municipalities "impose meaningful restraints on the use of
SWAT" and notes that there needs to be greater documentation,
transparency, and accountability on how the police are
spending tax dollars. The report also includes a laundry list
of recommendations for local agencies, primarily directed at
best practices in the use of SWAT teams.
4)1033 Program. The DOD 1033 Program allows surplus U.S.
military equipment to be transferred to municipal police
departments free of charge. The 1033 Program is named for the
section of the National Defense Authorization Act of 1997 that
granted permanent authority to the Secretary of Defense to
transfer defense material to federal and state agencies for
use in law enforcement, particularly those associated with
counter-drug and counter-terrorism activities.
The 1033 Program is reported to have transferred $5 billion in
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military equipment to police departments across the country.
According to the Congressional Research Service, 1,000 law
enforcement agencies are registered nationwide and 8,000 are
currently using property provided through the program,
including a number of California cities. News reports state
the cities of Davis and San Jose have recently decided to
return armored vehicles they received from the federal
government, and other cities have been reported to have such
equipment at their disposal.
According to the Defense Logistics Agency (DLA), which
administers the 1033 Program, "For states to participate in
the program, they must each set up a business relationship
with DLA through a Memorandum of Agreement (MOA). Each
participating state's governor is required to appoint a State
Coordinator to ensure the program is used correctly by the
participating law enforcement agencies. The State
Coordinators are expected to maintain property accountability
records and to investigate any alleged misuse of property, and
in certain cases, to report violations of the Memorandum of
Agreement to DLA. State Coordinators are aggressive in
suspending law enforcement agencies who abuse the program.
"Additionally, DLA has a compliance review program. The
program's objective is to have (DLA's) Law Enforcement Support
Office staff visit each state coordinator and assist him or
her in ensuring that property accountability records are
properly maintained, minimizing the potential for fraud, waste
and abuse."
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5)Office of Emergency Services. The Governor's Office of
Emergency Services (OES) administers the 1033 Program for the
state. According to the OES website, "California law
enforcement agencies (LEAs) that wish to acquire and/or retain
1033 Program excess property must be certified and currently
authorized to use the 1033 Program. Certification paperwork
is required annually and whenever a participating agency's
Chief Executive Official Changes. Authorization to use the
1033 Excess Property Program is valid for one year unless the
Chief Executive Officer of the LEA changes.
"All CA Law Enforcement Agencies that have acquired program
equipment must have at least one person registered and
actively maintaining their agency's inventory in the Federal
Excess Property Management Information System (LESO FEPMIS) as
part of their property accounting system for all program
related equipment."
OES maintains an inventory list of tracked 1033 equipment for
California agencies and entities. It was created by OES from
the (federal) Law Enforcement Support Office (LESO) database
dated June 25, 2014. The list is a snapshot in time and may
not reflect more recent transactions within the LESO's
dynamically changing database. OES auditors pull from this
database to form their lists for individual agency
accountability checks throughout the year. The list is the
only inventory OES retains outside of the LESO database.
There are no historical inventories retained by OES.
(Unfortunately, at the time this analysis was drafted, this
list was not accessible on the OES website.)
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LEAs also purchase equipment with their own money and/or with
federal grants, in addition to equipment acquired through the
1033 Program.
6)Federal Legislation. On September 16, Rep. Hank Johnson (D-GA)
and Rep. Raul Labrador (R-ID) introduced the Stop Militarizing
Law Enforcement Act of 2014 (H.R. 5478), which would have
placed restrictions and transparency measures on the 1033
Program. The bill would have:
a) Prevented transfers of equipment inappropriate for local
policing, such as high-caliber weapons, long-range acoustic
devices, grenade launchers, armed drones, armored vehicles,
and grenades or similar explosives;
b) Ended incentives to use equipment in circumstances when
the use is unnecessary. Under the 1033 Program, local
police are required to use the equipment within a year,
incentivizing towns to use it in inappropriate
circumstances;
c) Required that recipients certify that they can account
for all equipment. In 2012, the weapons portion of the
1033 Program was temporarily suspended after DOD found that
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a local sheriff had gifted out army-surplus Humvees and
other supplies. This bill would have prohibited re-gifting
and required recipients to account for all equipment
received from DOD; and,
d) Added requirements to enforce tracking mechanisms that
keep up with and control transfers of the equipment,
implement policies ensuring that police agencies can't
surplus the equipment for resale, and define drones more
clearly.
This federal measure was not enacted.
7)Related Legislation. SB 242 (Monning) requires a school
district's police department to obtain approval from its
governing board prior to receiving federal surplus military
equipment. SB 242 passed the Senate Education Committee on a
7-1 vote on March 25, 2015, and is pending in the Senate
Public Safety Committee.
8)State Mandate. This bill is keyed a state mandate, which
means the state could be required to reimburse local agencies
and school districts for implementing the bill's provisions,
if the Commission on State Mandates determines that the bill
contains costs mandated by the state.
9)Committee Amendment. The author's intent for this bill is to
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increase transparency and public involvement when local
agencies deliberate the acquisition of 1033 equipment. In
keeping with that objective, the Committee may wish to specify
that a local agency must approve such an acquisition at a
regular meeting held pursuant to the Brown Act.
10)Arguments in Support. None on file.
11)Arguments in Opposition. The League of California Cities, in
opposition, states, "The League of Cities opposes this measure
as an unjustified incursion upon municipal sovereignty. Under
current law, local agencies are fully within their
constitutional police power in deciding whether to acquire
military equipment from the Department of Defense pursuant to
the 1033 Program, and under what circumstances. Some cities
have voluntarily made the decision to acquire equipment such
as an MRAP (an armored truck used by the U.S. Army) via a vote
of the city council. But due to the security implications,
jurisdictions can and should decide for themselves on the
circumstances under which they make such decisions, including
whether to observe the Brown Act.
"(L)ocal jurisdictions are in the best position to determine
the method by which surplus equipment is acquired. In some
instances, Brown Act compliance may be desirable to facilitate
agreement by the community being served; in others, a vote in
closed session of the local governing body may be the most
prudent course; and in still other instances, an executive
decision by a mayor, city manager or police chief, or some
combination thereof, may be most appropriate. In any case,
local flexibility should be preserved, and municipal
sovereignty should not be pre-empted."
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REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
California Police Chiefs Association
League of California Cities
Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958
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